Sexual Harassment and Misconduct

For victims of sexual misconduct, it is a devastating and traumatic experience. While the victims may never truly be made whole, there are a number of civil causes of action in California, which fall under the umbrella of personal injury, to hold individuals or entities accountable for causing harm or injury through various forms of unwanted or nonconsensual sexual behavior.

Unlike in criminal cases, which carry a heavy burden of proof – “beyond a reasonable doubt” – civil cases have a much lower burden of proof and require that plaintiffs, i.e. the victims, prove their case by a preponderance of the evidence – “more likely than not.”

Types of Civil Claims for Sexual Misconduct

Sexual Harassment

Under California law (Civil Code §51.9), individuals who experience sexual harassment in the workplace, education, or other settings may bring a civil lawsuit against the harasser and, in some cases, against the employer or institution that allowed the harassment to occur. One is liable when:

1. There is a business, service, or professional relationship between the plaintiff. For example, this includes a relationship with a doctor, attorney, teacher, or elected official amongst other types of relationships.

2. The defendant has made sexual advances, solicitations, requests, or other conduct of a sexual nature that were unwelcome or pervasive and severe.

3. As a result of such conduct, the plaintiff has suffered damages. This may include economic damages, such as loss of earnings or medical expenses, or non-economic damages, such as pain and suffering, emotional distress, and humiliation.

Assault and Battery

Civil battery means any intentional and harmful offensive contact by one person to another. Assault involves the threat of harmful or offensive contact compared to battery, which involves actual physical contact without consent. Victims of assault and battery in a sexual context may sue the perpetrator for damages.

Sexual Battery

Under California law (Civil Code §1708.5), sexual battery occurs when one does any of the following:

1. Acts with the intent to cause harmful or offensive contact with another by use of the person’s intimate part, resulting in a sexually offensive contact with that person.

2. Acts with the intent to cause a harmful or offensive contact with another by use of the person’s intimate part, which results in a sexually offensive contact with that person.

3. Acts to cause an imminent apprehension of the conduct described above, which results in sexually offensive contact with that person.

Lack of consent is an essential part of any battery claim. It is well recognized that one may place conditions on consent, and that if the perpetrator exceeds those conditions, he or she may be liable for the excessive act.

Gender Violence

Gender violence is a form of sex discrimination. Under California law (Civil Code §52.4), any act that would be a criminal offense that involves the use or threatened use of physical force against the person or property of another, based in whole or in part on the gender of the victim, or a physical intrusion or invasion of a sexual nature under coercive conditions allows the victim to bring a claim for gender violence. This is true regardless of whether those acts have resulted in criminal complaints, charges, prosecution, or conviction of a defendant.

Notably, a plaintiff may also be awarded attorneys’ fees and costs for this cause of action, unlike for most civil causes of actions, in addition to seeking compensatory and punitive damages. 

Intentional Infliction of Emotional Distress

Victims may pursue this claim if the sexual misconduct caused severe emotional distress due to extreme and outrageous behavior by the defendant. Under California law, the victim must show that the defendant’s conduct was outrageous and intentionally done to cause emotional distress or that the defendant acted with reckless disregard of the probability that the victim would suffer emotional distress, knowing that the victim was present.

Severe emotional distress means distress of such substantial or lasting quantity that no reasonable person should be expected to endure it. Generally, there can be no recovery for profanity, obscenity, or abuse, without circumstances of aggravation, or for insults or threats that are considered to amount to nothing more than mere annoyances.

Even if this cause of action is unavailable, a victim may still be able to recover for “garden variety” emotional distress as part of any of the other causes of action for sexual misconduct. Garden variety emotional distress seeks damages for things such as pain and suffering and generally does not place a victim’s mental health status at issue. 

Negligence

In some cases, a third party may be held liable for sexual misconduct if it failed to take reasonable steps to prevent such behavior from occurring. This means that employers, educational institutions, hospitals, or other entities may be held vicariously liable for sexual misconduct of their employees or agents if the misconduct occurred within the scope of their employment or duties.

Some examples include negligent hiring and negligent retention. Generally, negligence liability will be imposed on an employer if it knew or should’ve known that hiring and/or retaining the employee created a particular risk or hazard, and that the particular harm materialized.

For example, if a hospital staffer with a history of sexual offenses was hired by the hospital and the hospital failed to conduct a background check, the hospital may be liable for any sexual misconduct committed by the staffer towards patients. Similarly, under the same circumstances, a hospital may be found liable for offenses by the staffer if it left the staffer alone with patients and failed to supervise.    

How long do you have to bring a claim for sexual misconduct?

California has specific time limits, known as statutes of limitations, within which a victim must file a civil lawsuit. The time period varies based on the type of claim and circumstances of the case. The statute may be extended if the victim was a minor at the time of the incident.

What type of damages may you recover?

Successful plaintiffs in civil cases involving sexual misconduct may generally recover two types of damages: 1) economic damages to cover past and future medical expenses, such as therapy costs, and past and future loss of earnings; and 2) non-economic damages, such as pain and suffering, emotional distress, inconvenience, and humiliation. In some cases, punitive damages may also be awarded to punish the defendant for especially egregious conduct and to deter such conduct from happening again.

Confidentiality Agreements

In some settlements or resolutions of sexual misconduct cases, parties may agree to a confidentiality clause that prevents the victim from discussing the details of the case. Under California law, however, any provision that prevents or restricts the disclosure of factual information related to claims for sexual assault, sexual harassment, and workplace or other acts of harassment or discrimination is generally prohibited.

Our Approach

Sexual misconduct cases are typically complex and sensitive in nature, as they often balance the privacy interest of the victim with wanting to hold the proper parties accountable. The specific facts and circumstances of each case will determine the outcome and potential liability.

Our attorneys will investigate the circumstances giving rise to your claim, gather evidence, and work diligently to build a strong case on your behalf. We will handle negotiations with the responsible party and other entities involved to strive for a fair settlement. If a settlement cannot be reached, we are prepared to litigate aggressively to protect your rights in court.

Why Choose Us?

• Expertise: Our attorneys are knowledgeable in personal injury law and have extensive experience handling sexual misconduct cases. We have a thorough understanding of the legal, ethical, and medical complexities involved and will use our expertise to build a strong case on your behalf.

• Personalized Approach: We believe in providing personalized attention to every client. We understand that each case is unique and requires a tailored approach. Our attorneys will take the time to listen to your concerns, answer your questions, and develop a legal strategy that aligns with your specific needs and goals.

• Proven Track Record: With a successful track record of obtaining favorable outcomes for our clients, you can trust us to handle your case. We have secured significant settlements and verdicts in sexual misconduct cases, helping our clients recover compensation for medical expenses, lost wages, pain and suffering, and more.

• Resources and Network: We have access to a wide range of resources and a vast network of experts, including medical professionals and investigators. We will leverage these connections to strengthen your case and ensure that no stone is left unturned.

• No Fee Unless We Win: We understand the financial strain that can come after suffering abuse and any investigation that follows, which is why we generally take personal injury cases on a contingency fee basis. This means that you will not have to pay any upfront fees. You only pay us if we successfully obtain compensation for you, ensuring that you can focus on your recovery without worrying about legal expenses.

Choosing the right attorney after being victim to sexual misconduct is crucial. With Phillips, Erlewine, Given & Carlin LLP, you can have confidence that you are selecting a firm that will champion your rights and work tirelessly to achieve the best possible outcome for your case. Contact us today for a free consultation and let us guide you on the path to justice and recovery.

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